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Decisions – COA- Jan. 10, 2017

Kim Marie Gwathney v. Gary Joe Gwathney – cruel and inhuman treatment divorce – Kim and Gary were married for five years when, in 2012, Kim filed for divorce based on cruel and inhumane treatment. She claims that he had assaulted her approximately 15 times. The trial court denied the divorce finding that there was a lack of persuasive corroborating evidence. Kim appeals and the COA affirms.

The chancellor’s judgment stated, “it is of concern to this Court that there are allegations of physical abuse over the course of the marriage of the parties, but no persuasive corroborating evidence to support said allegations.” The chancellor further noted that “Kim 3 has stated that those episodes have been consistent over the years and frequent[;] [h]owever, she only testified to two instances, the first occurring in 2008 and the last in 2011.”

Sara Jane Koch v. State of Mississippi – felony DUI causing death – Koch was found guilty of having killed a pedestrian while driving drunk on I-10 the morning of February 1, 2012. She called 911 to report she had hit and probably killed a pedestrian. When law enforcement arrived on the scene, Koch was crying and her car smelled like alcohol. Koch’s blood was drawn and the bac was measured at .18%. On appeal she argues that the indictment failed to specify a negligent act, that the jury should have been instructed as to a specific negligent act, and that the State’s expert witnesses should not have been allowed to give opinion testimony regarding Sullivan’s location on the road at the time of the accident. The COA affirms.

Tyrone Ron Bruenderman v. Anna Teresa Latourney Bruenderman – custody and division of assets – Anna and Ty were married in 2002. Both were in the military. Anna agreed to stay at home to raise Ty’s two children from a previous marriage. They had a child together who was five at the t ime of the trial. In 2013, Anna filed for divorce on the grounds of adultery. Anna was awarded full physical custody of the child with both parties being awarded joint legal custody. The chancellor found Anna was entitled to, among other things, all of the equity realized from the sale of the marital home and one-third of Ty’s military retirement benefits, and ordered Ty to pay Anna one-half of the $11,300 in marital property that he had transferred into his mother’s personal bank account. As part of Ty and Anna’s asset-settlement agreement,Anna received $14,525 in household items, two vehicles totaling $21,688 in value, and $18,000 from a life-insurance policy. As part of the same agreement, Ty received $5,849 in household items, two vehicles totaling $37,197 in value, a boat valued at $6,965, and $18,000 from the life-insurance policy. Ty appealed. The COA affirms.

John Edward Wrenn v. State of Mississippi – invalid plea where defendant misadvised as to mandatory minimum – Wrenn was charged as an habitual with felon in possession of a sawed off shotgun. Jack Jones was appointed as his attorney. The day before his trial, Wrenn filed a petition to enter a guilty plea. The petition stated that the maximum punishment was 10 years and a $5,000 fine with the minimum punishment at 1 years imprisonment and/or $0 fine. The words “without parole” were handwritten above the words “10 years imprisonment” on the petition. During the plea colloquy the court told Wrenn that the maximum penalty was ten years in prison and a five thousand dollar fine and the minimum was one year. And this is what Wrenn was told during the plea colloquy. As an habitual, however, the sentence was a mandatory ten years. Prior to setencing. Wrenn tried to withdraw his plea. The trial court refused and sentended Wrenn to five years. The state then informed the judge that as an habitual, he had no choice but to sentence Wrenn to ten years and did so. Wrenn then filed a pro se pcr petition claiming that his attorney promised that if he pleaded guilty, the court would not sentence him to more than five years. After a hearing, the trial court denied relief. Wrenn appealed and the COA reverses and renders since both the plea petition and the plea colloquy demonstrate that Wrenn was misled into believing that he could get as little as one year.

Vanessa J. Jones v. City of Hattiesburg – termination from municipal judge position – Jones was appointed along with two others as a part-time municipal-court judge for Hattiesburg. After receiving complaints and reports of misconduct within the municipal-court system, the City conducted an internal investigation after which the mayor chose to reorganize the municipal-court system to have one full-time municipal judge, rather than the three-part time-judge system. The part time judge’s positions were eliminated. Jones sued alleging slander, defamation, intentional infliction of emotional distress, menace, outrage, and wrongful termination. The City answered, asserting that Jones was an at-will employee, thus barring her wrongful-termination claim, and that it was immune from her other claims under the MTCA. The trial court granted summary judgment to the City and Jones appealed. The COA affirms.

Thalmus Williams v. State of Mississippi – sexual abuse of a child – Williams was convicted of sexually abusing his ten-year-old daughter. Specifically, he was convicted of fondling, attempted sexual battery by an authority figure, and sexual battery by an authority figure. Williams contended that no abuse ever occurred. On appeal he argues that “the evidence presented was insufficient to sustain a verdict for attempted penetration of the anal area. The State concedes that the evidence against Williams for this charge is ‘tenuous’ and that his argument on appeal ‘possibly’ has merit. The COA agrees and reverses on the count of attempted sexual battery. The Court affirms on the other counts.

Elizabeth Graham and Matthew Graham v. James R.” Jamie” Franks, Jr. and Wheeler and Franks Law Firm, P.C. – complaint for discovery – In 2013, the Elizabeth Graham and her son Matthew retained the Wheeler and Franks Law Firm to defend Matthew in a criminal case. The fee was a fixed $75,000. Later, the Grahams filed suit alleging that after executing the flat fee contract, attorney James Franks Jr. used threats of a negative outcome in Matthew’s case to manipulate the Grahams into surrendering valuable property and making additional cash payments, in a total far in excess of the contract amount. The complaint was for discovery, accounting, and return of property. The Court dismissed the complaint pursuant to 12(b)(6). The Grahams appealed. The COA reverses finding that the request for an accounting as well as the request for discovery are permissible actions in chancery court. “As both discovery and accounting remain independent causes of action under Mississippi law, and Franks has never argued the insufficiency of the Grahams’ allegations on any specific element of either, we conclude that the trial court erred in granting the motion to dismiss for failure to state a claim upon which relief can be granted. We remand the case for further proceedings consistent with this opinion.”